June 21, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
LEMONT LOVE, AKA LAMONT OMAR AND LAMONT LOVE, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 07-03-00408, 07-03-00502, 08-01-00123, and 09-09-01537.
John B. Fabriele, III, attorney for appellant.
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel; Marie G. McGovern, on the brief).
Before Judges Ashrafi and Hayden.
Defendant Lemont Love appeals from the December 10, 2010 Law Division order denying his motion to withdraw his guilty plea. For the reasons that follow, we affirm.
The record reveals that, on March 16, 2010, following a plea hearing, defendant pled guilty to charges stemming from four separate indictments, including fourth-degree obstructing administration of law or other governmental function, N.J.S.A. 2C:29-1 (Indictment 07-03-00408); third-degree eluding, N.J.S.A. 2C:29-2b (Indictment 07-03-00502); third-degree distribution of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2c:35-5a(1) and 2C:35-5b(3) (Indictment 08-01-00123); and possession with intent to distribute of a CDS (cocaine), N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (Indictment 09-09-01537). The indictments were based on various incidents occurring between 2006 and 2009.
On June 22, 2010, prior to sentencing, defendant moved to withdraw his guilty plea. Defendant contended that his anxious state of mind affected the voluntariness of the plea. He stated that he felt "tremendous pressure" and "mental anguish" due to all the criminal charges he was facing and that he was not able to plead guilty voluntarily because he was too nervous. He reported that he felt coerced by his attorney and by the trial judge, who spoke to him off the record about the significant jail exposure he was facing on all four indictments. Defendant stated that the "fear and anxiety of hearing the worst case scenario" caused him to become "overwhelmed" and plead guilty even though he was innocent.
In denying the motion, the judge observed that "a whimsical change of mind" was insufficient to overturn a guilty plea. The judge stated that there was a factual basis for each charge to which defendant pled guilty. Based upon defendant's statements during the plea hearing, the judge found that the plea was knowing, voluntary, and intelligently given.
Additionally, the judge reviewed the factors identified in State v. Slater, 198 N.J. 145 (2009). He first determined that the defendant did not assert a colorable claim of innocence. He also found that enforcing the plea was fair since defendant voluntarily accepted the extremely beneficial plea offer because he was facing three times as much prison time if found guilty. As a result, he denied defendant's motion to withdraw his plea. Subsequently, the judge also denied defendant's motion for reconsideration.
On December 8, 2010, the trial judge sentenced defendant in accordance with the plea agreement to an aggregate ten years imprisonment with a five year parole disqualifier. Pursuant to the plea agreement, the judge also dismissed the remaining ten counts of the four indictments. This appeal followed.
On appeal, defendant raises the following argument for our consideration:
POINT I: THE COURT ERRED BY FAILING TO ALLOW DEFENDANT TO WITHDRAW HIS GUILTY PLEA WHICH WAS NOT KNOWINGLY AND VOLUNTARILY ENTERED, HAD AN INSUFFICIENT FACTUAL BASIS FOR A COUNT OF AN INDICTMENT, AND WHERE DEFENDANT ALLEGES INSUFFICIENT COMPREHENSION OF THE EVIDENCE.
We begin with a review of the applicable legal principles. "[A] guilty plea is the final relinquishment of the most cherished right - to be presumed innocent of a crime until a jury of one's peers has determined guilt beyond a reasonable doubt." State v. Smullen, 118 N.J. 408, 414 (1990). Yet, in seeking to vacate a guilty plea, the burden remains on a defendant "to present some plausible basis for his request, and his good faith in asserting a defense on the merits . . . ." Id. at 416 (citation omitted). We discern no abuse of discretion in the judge's acceptance of defendant's plea.
Before accepting a plea, the court must be satisfied that a factual basis for the plea exists. R. 3:9-2; State v. Barboza, 115 N.J. 415, 420-21 (1989). The "factual basis for a plea 'must obviously include defendant's admission of guilt of the crime or the acknowledgment of facts constituting the essential elements of the crime.'" State ex rel. T.M., 166 N.J. 319, 333 (2001) (quoting State v. Sainz, 107 N.J. 283, 293 (1987)). A "trial court must be 'satisfied from the lips of the defendant that he committed the acts which constitute the crime.'" Barboza, supra, 115 N.J. at 422 (quoting State v. Stefanelli, 78 N.J. 418, 439 (1979)). A factual basis "should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy." T.M., supra, 166 N.J. at 327 (citations omitted). We will not find a factual basis for a plea where the defendant is equivocal about committing the crime and is unable to provide facts about the crime when asked. State v. Henries, 306 N.J.Super. 512, 536-39 (App. Div. 1997).
Defendant agreed to plead guilty to the third-degree eluding charge in Indictment 07-03-00502, which charged that he eluded a police officer in Monroe Township who ordered him to stop his vehicle. Defendant contends, without specifying any factual or legal deficiency, that there was an inadequate factual and legal basis for his plea to third-degree eluding, N.J.S.A. 2C:29-2b. We disagree.
During the plea hearing, defendant admitted that the police attempted to pull him over, and, although the police had their lights on and identified themselves as police officers, he did not stop. He acknowledged that he "knew it [was] police officers [he was] eluding from" and that "eventually" the police stopped him.
Under N.J.S.A. 2C:29-2b, "[a]ny person, while operating a motor vehicle on any street or highway in this State . . . who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree . . . ." Because eluding is a substantive crime, it is not necessary to prove that defendant was trying to avoid apprehension; it is enough that he was aware that he was fleeing from the police. State v. Mendez, 345 N.J.Super. 498, 509 (App. Div. 2001).
Moreover, this case differs from Henries, where we found no factual basis for a plea based upon the defendant's vague and hesitant statements. 306 N.J.Super. at 536-39. By contrast, defendant was unequivocal in stating that the police signaled for him to stop but he intentionally continued "eluding" them. We are convinced that, in the context of the circumstances of the plea colloquy, defendant provided a factual basis for his guilty plea.
Where a defendant wishes to withdraw from a plea agreement before the sentencing, the standard for the court's determination is whether it is in "the interests of justice." R. 3:9-3(e). A decision granting or denying a motion to vacate is committed to the sound discretion of the motion judge. State v. Bellamy, 178 N.J. 127, 135 (2003). This discretionary determination requires the judge to weigh "the policy considerations which favor the finality of judicial procedures against those which dictate that no man be deprived of his liberty . . . ." State v. Johnson, 182 N.J. 232, 237 (2005) (quoting State v. McQuaid, 147 N.J. 464, 487 (1997)).
In evaluating a motion to withdraw a guilty plea, the trial judge must consider and balance four factors: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Slater, supra, 198 N.J. at 157-58 (citing United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2002)). No one factor is mandatory, and relief is neither disqualified nor dictated based upon its absence or presence. Id. at 162.
The first Slater factor focuses on whether defendant has asserted a colorable claim of innocence. "A core concern underlying motions to withdraw guilty pleas is to correct the injustice of depriving innocent people of their liberty." Id. at 158. "A colorable claim of innocence is one that rests on 'particular, plausible facts' that, if proven in court, would lead a reasonable factfinder to determine the claim is meritorious." State v. Munroe, 210 N.J. 429, 442 (2012) (quoting Slater, supra, 198 N.J. at 158-59). In weighing such motions, trial courts must bear in mind that "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea" and that defendant must present "specific, credible facts" in support of that claim. Slater, supra, 198 N.J. at 158. Here, defendant claims he was innocent of all the charges in the four indictments but has not provided any "particular plausible facts" to show that this bald assertion is meritorious. Thus, he has not presented a colorable claim of innocence.
The second factor focuses on the basic fairness of enforcing a guilty plea. The court's inquiry is whether the defendant "presented fair and just reasons for withdrawal" and considers the effectiveness of those reasons. Id. at 159. Our courts have identified a number of reasons that warrant withdrawal of a plea. These reasons include whether
(1) the court and prosecutor misinformed the defendant about a material element of the plea negotiation, which the defendant relied on in entering his plea; (2) the defendant was not informed and thus did not understand material terms and relevant consequences of the guilty plea, namely, the direct, penal consequences of the plea; (3) [the] defendant's reasonable expectations under the plea agreement were not met; and (4) the defendant has not only made a plausible showing of a valid defense against the charges, but also credibly demonstrated why that defense "was forgotten or missed" at the time of the plea.
[Id. at 159-60 (internal citations omitted).]
Here, defendant does not contend that he was misinformed or did not understand the plea or its consequences. Rather, he claims that due to his attorney and the trial judge informing him of his total prison exposure, he became so frightened that his will was "overborne" and he was not acting voluntarily. We strongly disapprove of the judge speaking to defendant off the record and informing him that it was in his interest to take the plea. However, as the judge noted, he was merely asking defendant to look at all his options due to both his potential exposure to a lengthy incarceration from all four indictments and the State's highly beneficial offer to recommend moderate and concurrent sentences. At the plea hearing, defendant stated that he was freely entering into the plea. There is no dispute that he received the benefit of the agreement. Under the circumstances here, we conclude that defendant has not provided a fair and just reason to vacate the plea.
With respect to the third Slater factor, whether the plea was entered as the result of a plea bargain, the Court noted that a defendant has a heavier burden in seeking to withdraw pleas entered as part of a plea bargain. Slater, supra, 198 N.J. at 160. However, the Court pointed out that the third factor should not "be given great weight in the balancing process." Id. at 161.
As to the fourth factor, "[t]here is no fixed formula to analyze the degree of unfair prejudice or advantage that should override withdrawal of a plea." Ibid. "The critical inquiry . . . is whether the passage of time has hampered the State's ability to present important evidence." Ibid. As defendant moved to vacate the plea within months of entering into the plea, the State has not shown any prejudice.
After carefully weighing the Slater factors, the balance goes against allowing withdrawal of defendant's guilty plea. Defendant has not made a colorable claim of innocence and has not shown fair and just reasons for withdrawal. A defendant "must show more than a change of heart", and "[a] 'whimsical change of mind' . . . is not an adequate basis to set aside a plea." Id. at 157 (quoting State v. Huntley, 129 N.J.Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974)). Consequently, as defendant has failed to establish that it is in the interest of justice to vacate his guilty plea, we conclude that the trial judge did not abuse his discretion in denying defendant's motion to vacate Affirmed